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UNITED STATES v. MOLINA-CHACON

February 13, 1986

UNITED STATES OF AMERICA
v.
VICTORIANO MOLINA-CHACON, GAETANO GIUFFRIDA, TRINITARIO RUIZ-SAURA, THERESA RUIZ, ANTHONY C. CASTELBUONO, MELANIA LOPEZ, RUDOLFO RISATTI, FRANCIS DiTOMMASO, SALVATORE MESSINA, and SHEILA SILVETTI, Defendants.



The opinion of the court was delivered by: PLATT

PLATT, D. J.

This Court is called upon once again to decide several motions submitted by defendant Victoriano Molina-Chacon in this multi-defendant, international, multi-million dollar heroin conspiracy and money laundering case. Molina-Chacon seeks the suppression of certain physical evidence seized from him upon his arrest in Bermuda as well as the suppression of certain statements made by him subsequent to his arrest. Additionally, Molina-Chacon, citing United States v. Rauscher, 119 U.S. 407, 30 L. Ed. 425, 7 S. Ct. 234 (1886), seeks the dismissal of counts in the current superseding indictment on the grounds that they exceed the permissible indictable crimes specified in his "extradition." For the reasons discussed in this opinion, all of the motions of the defendant must be denied.

 I. Background

 Based upon the documents and memoranda submitted to this Court as well as the testimony given at a pre-trial suppression hearing held on November 19 and 20, 1985, the Court finds the following to be the facts of the case.

 Victoriano Molina-Chacon and others were the subject of a long investigation conducted in the Eastern District of New York and elsewhere concerning their involvement in heroin trafficking and money laundering. By January of 1985 this investigation had convinced agents of the United States Drug Enforcement Administration ("DEA") of Molina-Chacon's substantial involvement in criminal activities. An arrest warrant for Molina-Chacon was obtained from United States Magistrate John L. Caden on January 21, 1985 in the Eastern District of New York for the crime of conspiracy to import heroin into the United States. At that time Molina-Chacon was somewhere overseas beyond the jurisdiction of United States law enforcement personnel. An undercover operation was conceived whereby agents of the DEA would meet Molina-Chacon in Bermuda and secure his apprehension there.

 Sometime in February of 1985, Special Agent Kevin Gallagher, the DEA's liaison with Bermudian authorities, communicated with Detective Inspector John L. Williams, who was the head of the narcotics section of the Bermuda Police Force. Agent Gallagher told Inspector Williams of the existence of the outstanding warrant for Molina-Chacon as well as the desire of the DEA to send agents to Bermuda to further their investigation of this case. Prior to this point in time, Inspector Williams knew absolutely nothing about the American investigation. Inspector Williams relayed this request to the Attorney General of Bermuda, Saul M. Froomkin, and the Commissioner of Bermuda's Police, Frederick Bean. A decision was made to permit the United States to send DEA agents to Bermuda to further their investigation of Molina-Chacon.

 On Thursday, February 28, 1985, Special Agents Lucille Lanzar and Joel Gutensohn arrived in Bermuda with the arrest warrant that had been signed by Magistrate Caden. Inspector Williams took the United States warrant to Attorney General Froomkin and a request for a provisional arrest warrant was drawn up. This request was granted by Bermudian Magistrate Ephraim Georges on Friday, March 1, 1985.

 The next day, Saturday, March 2, 1985, Inspector Williams drove Agents Lanzar and Gutensohn to Bermuda's airport to watch for the arrival of Molina-Chacon. After deplaning, Molina-Chacon took a taxi, which Inspector Williams and the agents followed, to the Elbow Beach Hotel. Shortly after arriving at the hotel, Molina-Chacon went to the Seahorse Bar and Grill (located in the lower level of the Elbow Beach Hotel) and met with DEA Special Agents Art Reed and Frank Fernandez (they had arrived separately in Bermuda), who were acting in an undercover capacity. Agents Lanzar and Gutensohn also joined this meeting in an undercover capacity while Inspector Williams observed the entire group out of earshot. After the conclusion of the March 2nd meeting, Agents Lanzar and Gutensohn informed Inspector Williams that another undercover meeting with Molina-Chacon would take place in the late afternoon of March 3rd and that Inspector Williams should bring the provisional arrest warrant with him to the Elbow Beach Hotel in order to effect Molina-Chacon's arrest.

 On Sunday, March 3, 1985, Molina-Chacon met again with the group of undercover DEA agents in the Seahorse Bar and Grill. At this time Inspector Williams was waiting in the lobby of the Elbow Beach Hotel along with Detective Sergeant Winston Esdaille of the Bermuda Police. After meeting for about an hour in the Seahorse Bar and Grill, the DEA agents led Molina-Chacon to the lobby of the hotel. At this point, Inspector Williams, through the translation into Spanish by Agent Fernandez, identified himself to Molina-Chacon as a Bermudian Police Official and informed him of his possession of a provisional arrest warrant.

 Inspector Williams told Molina-Chacon (through Agent Fernandez's translation) that he was not obligated to say anything unless he wished to do so and that anything he said would be written down and used in evidence. Inspector Williams took possession of an attache case which Molina-Chacon was carrying and led him to an unmarked police vehicle. Molina-Chacon made no significant statements at this time other than "thanking" the agents.

 Molina-Chacon was placed in a car along with Inspector Williams and Agents Gutensohn and Fernandez. Agents Lanzar and Reed followed in a second car operated by Sergeant Esdaille. En route to the Hamilton Police Station, Agent Gutensohn orally advised Molina-Chacon of his Miranda rights, which were translated into Spanish by Agent Fernandez. Molina-Chacon said he understood his rights and that he had not done anything.

 Upon arrival at the Hamilton Police Station, Molina-Chacon was processed by the Bermuda Police which included a search of his person for valuables and other items, at which point his wallet was taken. Inspector Williams asked Agent Fernandez to read in Spanish to Molina-Chacon a "notice to prisoners" form which apparently is a statement of the rights which arrests have under the law of Bermuda. Agent Fernandez translated the document but, being distrustful of Agent Fernandez's translation, Molina-Chacon refused to sign it.

 After the initial processing by the Bermuda Police, Agent Lanzar asked Inspector Williams if she could question Molina-Chacon to obtain some biographical information for DEA files. Inspector Williams provided Agent Lanzar with a blank personal history form utilized by the Bermuda Police and access to an interview room for this purpose. Agents Lanzar and Fernandez entered this room with Molina-Chacon. Agent Fernandez translated into Spanish the Miranda warnings from a standard DEA form. Molina-Chacon stated that he understood his rights and that he had done nothing illegal. At this point Agent Lanzar, with Agent Fernandez translating, asked Molina-Chacon various biographical background questions. After obtaining the pedigree information, Agent Lanzar asked Molina-Chacon whether he knew Antonio Turano and Gaetano Giuffrida, two other individuals suspected of narcotics trafficking. Molina-Chacon described his association with these individuals in various business ventures, related that he suspected their being involved in illegal activities, but denied any personal involvement in heroin trafficking. This ended the conversation with the agents.

 At some point during the events at the Hamilton Police Station that day, Inspector Williams allowed DEA agents to photocopy documents which were contained in the attache case and wallet seized from Molina-Chacon. The originals remained in Bermudian custody as well as the wallet and attache case themselves. The DEA agents left for the United States the next day, Monday, March 4, 1985.

 Molina-Chacon, meanwhile, remained in the custody of the Bermudian authorities. On the morning of March 4, 1985, Inspector Williams communicated with the Spanish Consul to Bermuda, a Mrs. Dean, and informed her that he had a Spanish National (Molina-Chacon) in custody. According to Inspector Williams, the purpose of this communication was to have the Spanish Consulate attend to any "humanitarian needs" Molina-Chacon might have. Inspector Williams offered to have the Bermuda Police's Spanish interpreter, a Colombian woman, meet with Molina-Chacon but Mrs. Dean rejected this idea. Instead, Mrs. Dean insisted that Molina-Chacon be seen by Jose Perez-Vivas, a Spanish citizen fluent in English and Spanish who resided in Bermuda, where he conducted an importing and distribution business. Inspector Williams had never dealt with Mr. Perez-Vivas before but he agreed to communicate with him to ascertain whether he would see Molina-Chacon on behalf of the Spanish Consul.

 The next morning, March 5, 1985, Inspector Williams went to Perez-Vivas's office and explained the situation to him. Perez-Vivas readily agreed to meet with Molina-Chacon and asked Inspector Williams to drive him to his residence so that he could obtain his Spanish passport and other documents in order to prove his Spanish citizenship to Molina-Chacon. Parenthetically, it bears mentioning that Mr. Perez-Vivas accepted no fee for his services to the Spanish Consul. Apparently, Mr. Perez-Vivas considers the occasional translation work he does for the Spanish Consul, Bermudian government agencies and other organizations to be a public service for which he seeks no compensation.

 After obtaining his Spanish documents, Perez-Vivas went with Inspector Williams to the Hamilton Police Station. Inspector Williams brought Perez-Vivas to an interview room where Molina-Chacon was held and introduced the two. Inspector Williams (through Perez-Vivas's translation) again informed Molina-Chacon that he was not obligated to say anything unless he wished to do so and that anything he did say would be taken down in writing for evidence. Perez-Vivas displayed his Spanish documentation to Molina-Chacon and the two began to converse. Inspector Williams remained in the room and Perez-Vivas translated what Molina-Chacon was saying and took notes. Perez-Vivas and Molina-Chacon had a wide-ranging discussion which initially involved topics of family, Spain and Molina-Chacon's shoe business. Molina-Chacon also spoke of monetary transactions in the United States and mentioned the first names of various individuals. Most significantly, Molina-Chacon mentioned a 2.4 million dollar transaction in New York which involved a lawyer named "Tony Castelbuono" (a co-defendant in this case). When first names were mentioned by Molina-Chacon, Inspector Williams asked for clarification of identities, which Molina-Chacon did not provide. These were apparently the only questions asked by Inspector Williams, the lion's share of the questioning coming directly from Perez-Vivas. At one point, Inspector Williams left the room to try to communicate with the DEA in New York to inform them of the then occurring conversation. The entire session lasted for about one hour. At the conclusion of the conversation Inspector Williams asked for and received Perez-Vivas's notes and obtained Perez-Vivas's agreement to act as Molina-Chacon's interpreter at an appearance before a Bermudian Magistrate later that day. Inspector Williams subsequently telephoned Agent Lanzar in New York and relayed the statements Molina-Chacon had made to Perez-Vivas.

 On the afternoon of March 5, 1985, Molina-Chacon was brought before a Bermudian Magistrate. With Perez-Vivas serving as interpreter the Magistrate informed Molina-Chacon of the charges against him. Through Perez-Vivas, Molina-Chacon informed the Magistrate of his desire to go to the United States to face his charges. The Bermudian Magistrate remanded Molina-Chacon into custody pending the preparation of a waiver of extradition.

 The Bermudian Attorney General, Saul M. Froomkin (who was also during the time in question the acting Deputy Governor of Bermuda), prepared a waiver and consent to extradition as well as a deportation order. Molina-Chacon was brought before a Bermudian Magistrate a second time, on March 11, 1985, and, with Perez-Vivas again acting as interpreter, the Magistrate read to Molina-Chacon the contents of the waiver and consent to extradition. After the Magistrate explained to Molina-Chacon in lay terms that signing the waiver was not an admission of guilt Molina-Chacon signed the waiver, which said in pertinent part: "I, Victoriano Molina Chacon . . . hereby freely and voluntarily waiver and forego all my rights under The Extradition Act 1870 . . . ."

 It should be noted also that at neither appearance before the Bermudian Magistrates was counsel present for Molina-Chacon. However, the Spanish Consul had retained a barrister, Brian Smedley, to represent Molina-Chacon. Mr. Smedley had apparently visited Molina-Chacon while he was in custody. There is no indication that Mr. Smedley was dissatisfied with the proceedings involving Molina-Chacon or that his representation of Molina-Chacon was somehow incompetent under the law of Bermuda.

 On March 12, 1985, Molina-Chacon was taken to the Bermuda airport by Inspector Williams. Inspector Williams released Molina-Chacon into the custody of a United States Marshal and boarded the plane with them. He also brought along the attache case and wallet seized from Molina-Chacon. Upon his arrival in New York, Inspector Williams turned over the attache case and wallet to DEA agents.

 II. Discussion

 A. The Wallet and ...


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